No right to trade on road sides: High Court

While the Constitution of India, vide Article 19(1)(g), grants to each citizen a fundamental right to carry out trade or profession of his choice, such carrying out of rights is not subject to just limitations. Article 19(6) itself provides a limitation on such rights. In this context the perpetual debate has been the right of an individual versus the concern for or impact on the society. 

Speaking in this context, the Andhra Pradesh High Court in a recently reported decision [Karanam Manjunath v. The District Collector, Kurnool, AIR 2010 NOC 948] was required to decide whether it is permissible for a citizen to carry out a trade on the margin of the road where the local authority has permitted them to carry on the trade for some period in the past and now is desirous to removing the shops. Holding that there was no such right to carry on the business on road-margin, the High Court declared in this respect as under;

The question involved in this writ petition is a right to carry on trade and business guaranteed under Article 19(1)(g) of Constitution of India. The right of a citizen to carry on trade on the street in tune with Article 19(1)(g) read with Article 19 (6) is recognised. The Supreme Court in Sodan Singh (supra), Ahmedabad Municipal Corporation v Nawab Khan and various other Judgments of Supreme Court, considered various aspects of the rights and restrictions subject to which such right can be enjoyed. Following the Judgments in Secunderabad Bunks (Kiosks) Owners Association v Commissioner, Municipal Corporation, Hyderabad, and Slum Dwellers Welfare Association v District Collector, Ranga Reddy District, this Court in an unreported Judgment, dated 30.04.2004, in W.P.No.15413 of 1994 (Venkatesh v M.C.H., Hyderabad), reiterated the law as under.

Insofar as the submission that a citizen has right to carry on business on the street is concerned, there cannot be any dispute with the principle of law in view of the decision of the Supreme Court in Sodan Singh (supra). However, the right to carry on business on the street either by moving from one place to another, squatting at one particular place is concerned, it is also well settled that no citizen can cause obstruction to the traffic or pedestrians because the roads and pathways are essentially meant for to pass and re-pass and use for conveyance. A reference may be made to judgment of a Division Bench of this Court, to which I was a member, in Slum Dwellers Welfare Association (supra).

After referring to important case law on the point in Manglaur Municipality v Mahadeoji, Pyare Lal v Delhi Municipality, Himat Lal v Police Commissioner, Ahmedabad, K.Sudarsan v Commissioner, Corporation of Madras, M.A.Pal Mohammed v R.K.Sadarangani Bombay Hawkers’ Union v Bombay Municipal Corporation, Olga Tellis v Bombay Municipal Corporation, Sodan Singh (supra), Delhi Municipal Corporation v Gurnamkaur, P.K.Wariyar v State of Kerala, Sodan Singh (II) v New Delhi Municipal Committee, Gainda Ram (I) v M.C.D.Town Hall, Gainda Ram (II) v M.C.D. Secunderabad Bunks (Kiosks) (supra), Ahmedabad Municipal Corporation (supra), N.Jagadeesan v District Collector, North Arcot, Bapujinagar Khudra Byabasai Association v State of Orissa, Sodan Singh (III) v New Delhi Municipal Committee, Sodan Singh (IV) v New Delhi Municipal Committee, Gainda Ram (III) v M.C.D. and State of Maharashtra v Alka B.Hindge  the Division Bench laid down as under.

The law of the streets is well-settled. The road is primarily meant for citizens to pass and repass and use for conveyance….The right to carry on business, trade or profession being a fundamental right under Article 19(1)(g) of the Constitution of India any total prohibition of carrying on business on the road is unconstitutional. However, no citizen can claim absolute right to squat on the road either for the purpose of business or for the purpose of residence. Roads are not meant for building houses and residential huts. Roads are basically meant for citizens for passing and repassing. As long as the citizens’ activity in relation to road does not offend or effect the rights of other citizens, in that the use of the road does not obstruct the other citizens, no objection can be taken. But, when structure or permanent structure for business or residence, the law does not recognise such right.

The right of petitioners to occupy Gram Panchayat road margin – even if it is with permission of the Panchayat – is subject to the right of users of the road. The roads are meant for passing and re-passing by the users and they are not meant for squatters to carry on business. Sections 98 and 99 of Andhra Pradesh Panchayat Raj Act, 1994 (the Act, for brevity) empower, nay, cast a duty on the Gram Panchayat to remove all the encroachments and keep the roads vested in Gram Panchayat under Section 53 of the Act free from encroachments. Section 98(2) of the Act speaks of prescriptive right of a person in occupation of Gram Panchayat land/road and even in such cases, the person squatting on the road margin does not get a right of occupation and if such prescriptive right is proved, he is only entitled for compensation.

Therefore, the petitioners have no right to enforce by filing a writ petition.It is well settled that a writ of Mandamus can be issued only when the petitioner shows enforceable right (see Director of Settlements, A.P., v M.R.Appa Rao[23]). The petitioners have no right to continue to occupy the margin of Gram Panchayat road, especially when the same is causing obstruction for the users.

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Liability of insurer limited to policy: High Court

As a part of social welfare legislation, the Motor Vehicle Act obliges the insuror to pay the amount of compensation to the victim of a motor vehicle accident. However the question as to the extent of this liability of the insurer is always a vexed question. In a recently reported decision [The New India Assurance Co. Ltd. v. Smt. Chameli Devi, AIR 2010 PH 156] the Full Bench of the Punjab and Haryana High Court declared the law to this effect inter alia as under;

The Reference was made to the Larger Bench primarily for the reason that the comprehensive policy makes the Insurance Company liable for the unlimited liability as it is liable to satisfy the entire awarded amount. However, the question whether the comprehensive policy leads to unlimited liability of the Insurance Company to satisfy an award, stands decided by the Constitution Bench in C.M. Jaya’s case (supra), wherein it has been held to the following effect:-

“8. Thus, a careful reading of these decisions clearly shows that the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But in the absence of any such clause in the insurance policy the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability. This view has been consistently taken in the other decisions of this Court.

9. In Shanti Bai case, a Bench of three learned Judges of this Court, following the case of National Insurance Co. Ltd. v. Jugal Kishore, (1988)1 SCC 626, has held that:-

(i) a comprehensive policy which has been issued on the basis of the estimated value of the vehicle does not automatically result in covering the liability with regard to third-party risk for an amount higher than the statutory limit, 

(ii) that even though it is not permissible to use a vehicle unless it is covered at least under an “Act only” policy, it is not obligatory for the owner of a vehicle to get it comprehensively insured, and 

(iii) that the limit of liability with regard to third party risk does not become unlimited or higher than the statutory liability in the absence of specific agreement to make the insurer’s liability unlimited or higher than the statutory liability.

10. On a careful reading and analysis of the decision in Amrit Lal Sood v. Kaushalya Devi Thapar, (1998)3 SCC 744, it is clear that the view taken by the Court is no different. In this decision also, the case of Jugal Kishore is referred to. It is held:-

(i) that the liability of the insurer depends on the terms of the contract between the insured and the insurer contained in the policy; 

(ii) there is no prohibition for an insured from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby risk to the gratuitous passenger could also be covered; and

(iii) in such cases where the policy is not merely statutory policy, the terms of the policy have to be considered the liability of the insurer.” 

In view of the aforesaid judgment, we are of the opinion that mere fact that the insured has taken a comprehensive policy, does not lead to an inference that the Insurance Company is liable to indemnify the insured of the entire awarded amount including the amount in excess of the statutory liability.

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Minor discrepancies in evidence condonable: Supreme Court

Discrepancies exist. And particularly when they come to test of human memory, they exist in a big way. The law recognizes this aspect and therefore the law of evidence provides adequate latitude in this respect. The Supreme Court in a recently reported decision [State of U.P. v. Krishna Master, AIR 2010 SC 3071] was dealing with a similar issue wherein the evidence of a witness was discarded by the High Court as being inconsistent. 

Holding that minor discrepancies in evidence were condonable and that too particularly in cases of rustic witnesses, the Supreme Court declared the law to this effect inter alia as under;

10. This Court finds that the abovestated reasons are the only reasons specified by the High Court to disbelieve the eyewitness account given by PW1, Jhabbulal. In order to find out whether the reasons assigned by the High Court to disbelieve the episode of five murders narrated by witness Jhabbulal, are sound, this Court has undertaken the exercise of going through the entire testimony of witness Jhabbulal recorded before the Trial Court. As far as the incident which had taken place in the house of Guljari is concerned, it was mentioned therein that at about 12 O’clock, in the night, Master Shri Krishna holding ponia gun and Ram Sewak as well as Kishori holding country-made pistols tresspassed into the house of Guljari after jumping over southern side wall of the house of Gulzari and committed murder of Guljari, his wife Ramwati and son Rakesh by firing gun shots. He also mentioned in his testimony that because of the firing of gun-shots Umesh and Dharmendra who were sons of Gulzari were injured. According to him, on witnessing the said incident, he with his wife Leelawati left his home and went into the house of Khemkaran rasing hue and cry. It was further mentioned by the witness that the respondents had tried to trace his family and they had gone inside the shop of his brother Baburam and gunned him down after dragging him out of the shop. What was claimed by this witness was that the incident was also witnessed by Sarla Devi, daughter of Guljari, Rakesh and Madan Lal, sons of Guljari and his brothers Mohanlal, Rajaram and Kailash who were sons of Jiwan. It was asserted by him that he had witnessed the incident in the light of electric bulb. It was frankly admitted by him that no one had dared to go near to the respondents because they were carrying with fire arms. It was further asserted by him that after the respondents had left the place opposite the shop of his brother, he had gone near his injured brother who was alive and had tried to learn from Baburam as to who had assaulted him and thereupon his brother had informed him that Shrikrishna (respondent No.1), Ram Sewak (Respondent No.2) and Kishori (Respondent No. 3) had assaulted him with fire arms. It is also mentioned by him that at his instance, FIR was reduced into writing by Radhey Shyam as dictated by him and that he had filed the same at the police station. The record of the case shows that this witness was cross-examined at great length. He was subjected to grueling cross-examination which runs into 31 pages. The first and firm impression which one gathers on reading the testimony of this witness is that he is a rustic witness. A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness. When the respondents were firing from their respective fire arms, the High Court should not have expected PW1 Jhabbulal to mention description of the whole episode which had happened in a few minutes. The rustic witnesses cannot be expected to have an exact sense of time and so cannot be expected to lay down with precision the chain of events. In the instant case, this Court is of the firm opinion that the High Court gravely erred in not accepting evidence of PW1, Jhabbulal. Jhabbulal being a rustic witness is not expected to always have an alert mind and so have an idea of direction, area and distance with precision from which he had witnessed the incident. It is well to notice that in his examination in chief, Jhabbulal never claimed that he was standing by the side of the wall of courtyard nor it was claimed by him that he had witnessed the incident through mokhana, i.e. holes in the intervening walls. Though the witness was cross-examined for days together, he was never confronted with his statement recorded under Section 161 of the Code of Criminal Procedure wherein he had allegedly stated before the Police Officer that he had witnessed the incident through holes in the intervening wall. The witness having not been confronted with his earlier police statement wherein he had reportedly stated that he had seen the incident through the holes in the intervening wall, this Court fails to understand as to how the said statement allegedly made before the police during the investigation could have been pressed into service by the High Court to reject the substantive evidence of this witness tendered before the Court wherein it was specifically asserted that while in his house, he had witnessed the incident of killing of five members of Guljari’s family by the respondents by firing gun shots. The prosecution has satisfactorily established that Baburam who was brother of Jhabbulal, PW1, had lost his life because of gun shots fired at him. The suggestion made by the defence to the witness that he was making a false claim that Baburam was alive and that on enquiry by him, Baburam had told him that the respondents had assaulted him with fire arms, as he was tutored by the police outside the court room was emphatically denied by him. It is interesting to note that to confuse this witness he was cross-examined for days together on the point as to where and in which direction houses of Kailash, Rajaram Subedar, Darbari etc. were situated. Such an attempt by defence lawyer can hardly be approved. On re-appreciation of evidence of Jhabbulal, this Court finds that he has not made major improvements in his testimony before the Court and the so-called discrepancies which are blown out of proportion by the High Court are minor in nature and do not relate to the substratum of the prosecution story. To say the least, this Court finds that the approach of the High Court in appreciating evidence of PW1 Jhabbulal who was a rustic witness is not only contrary to the well settled principles governing appreciation of evidence of a rustic witness but is perverse. At this stage, it would be well to recall to the memory the weighty observations made by this Court as early as in the year 1988 relating to appreciation of evidence and the duties expected of a Judge presiding over a criminal trial. In State of U.P. v. Anil singh, AIR 1988 SC 1998, it is observed as under :

“In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.”

11. There appears to be substance in the argument of the learned counsel for the State that the feeble and insubstantial reasons have been given to disbelieve the trustworthy evidence of eye-witness, Jhabbulal as High Court had decided to give undeserved benefit of doubt to the respondents and had appreciated the evidence of PW1 Jhabbulal to find out drawbacks and shortcomings in his evidence when, in fact, there were none.

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Remove unauthorised hoardings: High Court

Holding that there was no right available to a person to demand the opportunity of being treated fairly even in the scenario where the matter pertained to removal of unauthorized hoardings put up by the person on traffic signals or public places, the Andhra Pradesh High Court in a recently reported decision has directed the authorities to ensure that unauthorized hoardings are removed in a timely manner such that unauthorised personnel do not derive monetary advantage of committing wrongly acts. 

The High Court in M/s Stan Power v. Greater Hyderabad Municipal Corporation (AIR 2010 NOC 999) inter alia observed as under;

22. All the objections which the petitioner could have put forth before the Commissioner, GHMC have been raised in the present writ petition and, as these contentions have been examined, the petitioner cannot be said to have suffered prejudice on that score.

23. The petitioner cannot take advantage on his own wrong, in installing traffic signals and erecting advertisement hoardings without prior written permission of the Commissioner, GHMC or a written agreement having been entered into with the Corporation, to contend that the traffic signals and advertisement hoardings should not be removed except after putting them on notice and giving them an opportunity of being heard. No prejudice has been caused to the petitioner as a result of respondent nos.1 and 2 not complying with principles of natural justice. Even before this Court, the petitioner has not shown that he had obtained prior written permission of the Commissioner under Section 421(1), or that he had entered into a written agreement with the Corporation under Section 124 of the GHMC Act. The challenge to the impugned proceedings, on the ground of violation of principles of natural justice, must fail. 

24. In the light of the statutory prescription in Section 124 and Section 421(1) of the G.H.M.C. Act, failure on the part of the petitioner to have either entered into a written agreement with the G.H.M.C, or to have obtain prior permission of the Commissioner, G.H.M.C for erection of advertisement hoardings would require this Court refraining from interfering with the impugned proceedings dated 17.03.2010. Suffice to hold that, in case the petitioner makes a written request to the 1st respondent within one week from today seeking reasonable time, (say a week or two), to remove the advertisement hoardings and the traffic signals installed by them, the first respondent shall consider the said request in accordance with law. It is made clear that in case the petitioner does not make any such request, or in case he fails to remove the advertisement hoardings and the traffic signals within the time, if any, granted by the first respondent, it is open to respondent nos.1 and 2 to proceed further in accordance with law to have the traffic signals dismantled and the advertisement hoardings removed.

25. While the petitioner may not be entitled for the relief sought for, the officials of the GHMC have not acquitted themselves well either. It is disheartening to note that officials of the GHMC, who are required to discharge their statutory functions/duties, as prescribed under the GHMC Act and the Rules made thereunder, have turned a blind eye, and have failed to prevent the petitioner from installing traffic signals and erecting advertisement hoarding without complying with the procedural requirements of the GHMC Act of obtaining written permission of the Commissioner, GHMC under Section 421(1), or entering into an agreement under Section 124 of the GHMC Act. It is, indeed a matter of great concern that, despite absence of a written agreement and prior written permission of the Commissioner, GHMC, the petitioner was not prevented from installing traffic signals, and erecting hoardings, on roads belonging to the GHMC. How the officials concerned remained silent when the petitioner erected the advertisement hoardings on lands vested in the GHMC and had, in fact, encouraged the petitioner to do so by their failure to act with promptitude remains a mystery. While the revenue generated on these advertisement hoardings has benefited the petitioner, the GHMC has suffered a huge loss on that score. It is a sad reflection of the efficiency and conduct of the officials, at various rungs of the GHMC that the petitioner has, all these days, not been prevented from brazenly erecting advertisement hoardings, pocketing the revenues generated therefrom, and thereby depriving the GHMC of advertisement revenues legitimately due to it. Respondent nos.1 and 2 would do well to ensure that such incidents do not recur.

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Justice not only to be given but also seem to be given: Supreme Court

In a recent decision the Supreme Court has revisited one of the axiomatic principles of fair play and natural justice that in a decision-making process justice must not only be given but also seem to be given. Chiding away the stance of an authority in which the notice issued to the person requiring the show cause clearly reflected that the authority calling for the reply had already made up its mind at to the guilt of the person, the Supreme Court declared that adopting such a position was contrary to the law of the land.

The Supreme Court in ORYX Fisheries Private Limited v. Union of India wrote a detailed judgment to take note of the earlier decision on the issue and hold that the stand adopted by the authority could not be tolerated and thus was quashed. The relevant portion of the decision reads as under;

19. It is obvious that in passing the impugned order of cancellation, the respondents were acting in a quasi-judicial capacity and also they were acting in exercise of their statutory powers. Indisputably, the third respondent while purporting to cancel the registration certificate was acting in exercise of his power under Rule 43 of the MPEDA Rules.

20. The show cause notice dated 23.01.2008 was issued by the third respondent in exercise of this power. 

21. For a proper appreciation of the points involved, the show cause notice is set out in etenso:

“Sub: SHOW CAUSE NOTICE

Your attention is invited to our HQ’s letter No.IV/53/06-MS/HO dated 25.10.2007 and subsequent joint meeting with the buyer held at our Head office on 5th September, 2007 on the trade complaint received from M/s Cascade Marine Foods LLC, Sharjah.

At the meeting it was convincingly proved that the cargo shipped by you to the above mentioned buyer was defective and you have not so far settled the complaint. Therefore, in exercise of the powers vested in me vide Office Order Part-II No.184012005 dated 25.11.2005 read with Rule 43 of the MPEDA Rules, I hereby call upon you to show cause why the Certificate of Registration as an Exporter granted to you should not be cancelled for reasons given below: 

1. It has been proved beyond doubt that you have sent substandard material to M/s Cascade Marine Foods, LLC, Sharjah.

2. You have dishonoured your written agreement with M/s Cascade Marine Foods, LLC, Sharjah to settle the complaint made by the buyer as you had agreed to compensate to the extent of the value of defective cargo sent by you and have now evaded from the responsibility.

3. This irresponsible action have brought irreparable damage to India’s trade relation with UAE.

Your reply should reach the undersigned within 10 days from the date of receipt of this letter failing which it will be presumed that you have no explanation to offer and we will proceed with action for cancellation of your registration certificate without further notice to you. If ultimately a decision is reached to deregister you under the provisions of the MPEDA Rules, it will automatically entail de-registration under Registration Exporters’ policy also.”

22. Relying on the underlined portions in the show cause notice, learned counsel for the appellant urged that even at the stage of  the show cause notice the third respondent has completely made up his mind and reached definite conclusion about the alleged guilt of the appellant. This has rendered the subsequent proceedings an empty ritual and an idle formality.

23. This Court finds that there is a lot of substance in the aforesaid contention. 

24. It is well settled that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show cause proceeding. A show cause proceeding is meant to give the person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice. 

25. Expressions like “a reasonable opportunity of making objection” or “a reasonable opportunity of defence” have come up for consideration before this Court in the context of several statutes. 

26. A Constitution Bench of this Court in Khem Chand v. Union of India and others, reported in AIR 1958 SC 300, of course in the context of service jurisprudence, reiterated certain principles which are applicable in the present case also.

27. Chief Justice S.R. Das speaking for the unanimous Constitution Bench in Khem Chand (supra) held that the concept of ‘reasonable opportunity’ includes various safeguards and one of them, in the words of the learned Chief Justice, is: “(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges leveled against him are and the allegations on which such charges are based;”

28. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the chargesheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceeding become an idle ceremony.

29. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against. In the instant case from the underlined portion of the show cause notice it is clear that the third respondent has demonstrated a totally close mind at the stage of show cause notice itself. Such a close mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid rule has been framed in exercise of the power conferred under Section 33 of The Marine Products Export Development Authority Act,  1972 and as such that Rule is statutory in nature.

xxx

31. It is of course true that the show cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 

32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show cause notice.

33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it.

34. A somewhat similar observation was made by this Court in the case of Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant & others, (2001) 1 SCC 182. In that case, this court was dealing with a show cause notice cum charge-sheet issued to an employee. While dealing with the same, this Court in paragraph 25 (page 198 of the report) by referring to the language in the show cause notice observed as follows: 

“25. Upon consideration of the language in the show-cause notice-cum-charge-sheet, it has been very strongly contended that it is clear that the Officer concerned has a mindset even at the stage of framing of charges and we also do find some justification in such a submission since the chain is otherwise complete.”

35. After paragraph 25, this Court discussed in detail the emerging law of bias in different jurisdictions and ultimately held in paragraph 35 (page 201 of the report), the true test of bias is:

“35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom — in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained:”

36. Going by the aforesaid test any man of ordinary prudence would come to a conclusion that in the instant case the alleged guilt of the appellant has been prejudged at the stage of show cause notice itself.

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